Miracle v. Barker

• Decision Date: 04 May 1943
• Docket Number: 2238
• Citation: 136 P.2d 678,59 Wyo. 92
• Parties: MIRACLE v. BARKER ET UX
• Court: Wyoming Supreme Court

136 P.2d 678

59 Wyo. 92

MIRACLE v. BARKER ET UX

No. 2238

Supreme Court of Wyoming

May 4, 1943

APPEAL from District Court, Natrona County; C. D. MURANE, Judge.

Action by F. E. Miracle against Lewis Barker and Ida Barker, husband and wife, to recover the balance due on an account for professional services performed by plaintiff's assignors. Trial to the court without a jury resulted in judgment for defendants, and plaintiff appeals.

Affirmed.

For the appellant the cause was submitted upon the brief of Bryant S Cromer, of Casper.

This is an action for the recovery of $ 250.00 claimed as a balance unpaid on a bill for medical services rendered by Drs. Howard and Lipscomb, physicians and surgeons of Denver, Colorado. Appellant sued as assignor of said physicians. The petition alleges an express contract upon the part of Lewis Barker to pay the price charged for the services. After the performance of the services, the physicians rendered a bill for $ 750.00 upon which $ 500.00 was paid. The defense is that the bill is exorbitant and unreasonable and that the reasonable value of the services in question was $ 500.00. The case was tried to the court without a jury and the judgment was in favor of defendants, from which judgment appellant appeals. Appellant contends that the judgment is erroneous and that it is founded on evidence offered by defendants that was hearsay incompetent, irrelevant, and immaterial, under an answer which alleged no affirmative defense except quantum meruit, and it denied the existence of any contract or agreed price. Also that the judgment is against the weight of the evidence introduced by appellant; also that defendants failed to establish by a preponderance of the evidence that plaintiff's assignors agreed to perform the services for $ 500.00 or that there was no agreed price and that $ 500.00 is the reasonable value of the services performed. Appellant cites in support of his contentions 20 Am. Jur. 400, Paragraphs 451 and 452. Also 20 Am. Jur. 238, Paragraphs 245, 246, and Page 246, Paragraph 253. In support of the second assignment of error, it is submitted that the record shows that defendant's witnesses did not have before them the facts constituting the examination, operations, and care given defendant Barker by appellant's assignors and were, therefore, not qualified to testify. 41 Am. Jur., Page 261, Paragraph 148; Robinson v. Campbell, 47 Iowa 625; Swift v. Kelly, 133 S.W. 901; Morrell v. Lawrence, 101 S.W. 571; Morrisett v. Wood, 26 So. 307. See also Bates Pleading and Practice, 210 and 870; 1 C. J. 662-688; Roy v. Kings Estate, 179 P. 821; Rogers Co. v. Welch, 184 P. 838; Mutch Co. v. Powers, 207 P. 621. It is respectfully submitted that the judgment of the lower court should be reversed with instructions to enter judgment for plaintiff as prayed for.

(There was no brief for respondents.)

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

This is an action brought by F. E. Miracle, assignee of T. Leon Howard and John N. Lipscomb, surgeons, to recover from the defendants Lewis Barker and Ida Barker, his wife, a balance of $ 250 claimed to be due on an account and the interest thereon. The petition alleges that the defendants are husband and wife; that Dr. Howard and Dr. Lipscomb are duly licensed physicians and surgeons in the State of Colorado; that on or about October 12, 1930, and on or about October 18, 1930, Drs. Howard and Lipscomb performed professional services for the defendant Lewis Barker, at his special instance and request and upon his express promise to pay for the same. The petition then sets out the account, claiming for an operation performed October 12, 1930, the sum of four hundred dollars, and for an operation performed October 18, 1930, the sum of three hundred and fifty dollars, and giving credit as follows: February 5, 1931, $ 200; June 22, 1931, $ 250; June 21, 1934, $ 50; a total of $ 500 paid. The petition then alleges the transfer of the account to the plaintiff herein and prays judgment for the balance. The defendants answered, admitting that they were husband and wife, and that the plaintiff's assignors performed the operation upon the defendant Lewis Barker. They denied that the professional services were of the reasonable value of $ 750, and allege that they are not worth to exceed $ 500, and that they have paid that sum. The case was tried to the court without a jury, and judgment was entered for the defendants, from which judgment the plaintiff has appealed.

Dr. Howard testified at length as to the services performed by him for the defendant Lewis Barker, namely, a prostatectomy, and he and Dr. Lipscomb both testified that the reasonable value of the services is the sum of $ 750. Dr. Rhea and Dr. Stuckenhoff, of Casper, Wyoming, testified that the reasonable value of the services performed was from $ 250 to $ 500. In the course of the trial Lewis Barker was asked as to some conversations which he had with Dr. Kamp, now deceased, who was his physician at Casper, Wyoming, and who took him to Denver to see Dr. Howard. Four assignments of error relate to the admission of the testimony as to these conversations. The main portions of the record relating to these conversations are as follows:

"Q. Now you may state what he (Dr. Kamp) told you with reference to the charge Dr. Howard would make.

Mr. Cromer: That is objected to as incompetent, irrelevant and immaterial, calling for hearsay testimony.

The Court: I am not quite sure about that. I will hear the testimony and pass upon it later.

A. After we got to the hospital, Mercy Hospital, the doctor says to me, 'Your bill will be $ 500 for the doctor, but you will have to pay all the nurses and hospital bills, the anaesthetic, if there is any bills to yourself besides that, but the doctor's bill will be $ 500.' * * * Q. Now I will ask you if at a later time and before you paid the balance of the $ 500 you had a further conversation with Dr. Kamp with reference to this bill? A. Yes, sir. Q. You may tell the court about when that was? A. That was about 1934. It was after I paid the $ 500, and then I got another statement wanting the balance. I took it up with Dr. Kamp.

Mr. Cromer: May we have, without interrupting the examination, an objection to all of the testimony in which the witness will testify to what Dr. Kamp said?

The Court: Yes, sir, you may have an objection and exception to all of that. * * *

Q. Then I take it it was after June 1, 1934, when you paid the $ 50 that made the total of $ 500. A. Yes. Q. How long after that? A. I think a year after that. It was, I think, a year after that I told the doctor and asked him if he would write Dr. Howard and he told me he would, and he said I wouldn't pay him any more either, because that is what he agreed to do it for."

As stated before, the case was tried to the court without a jury, and the rule is that in such case the erroneous admission of testimony is not ordinarily ground for a reversal, if there is competent evidence aside from that to sustain the judgment. Williams v. Yocum, 37 Wyo. 432, 263 P. 607 and cases cited; Alaska Development Company v. Brannan, 40 Wyo. 106, 119, 275 P. 115; Yount v. Strickland, 17 Wyo. 526, 533, 101 P. 942. That appears to be the general rule. 5 C. J. S. 997. In 26 R. C. L. 1085, the rule is stated thus: "It is the general rule that error will not lie for the admission of irrelevant and incompetent evidence in a case tried before the court without a jury, at least where it does not appear that the court relied on the incompetent evidence in making its decree." The rule as thus stated was approved in Morton Realty Company v. Irrigation & Mining Co., 37 Idaho 311, 218 P. 433. In Stone v. Spencer, 79 Okla. 85, 191 P. 197, it is stated that a judgment rendered in a case heard without the intervention of a jury may not be reversed on account of the admission of incompetent evidence unless the record discloses that there was no competent evidence to support it or in some other way shows affirmatively that the improper evidence affected the result." In Lawther Grain Co. v. Winniford, (Tex. Comm. App.) 249 S.W. 195, 198, the court stated.

"The judgment of the trial court should not be disturbed unless there be a showing that it was erroneous. In accordance with this rule it has been repeatedly held that the mere fact that improper evidence has been adduced need not require reversal where the trial was to the court. There must be some showing that the improper evidence affected the decision."

In the case of George v. Odenthal, 58 N.D. 209, 225 N.W. 323, it was said as follows:

"The case was tried to the court without a jury. Without reciting these rulings in detail, it is enough to say that certain evidence was received over the defendant's objection. Conceding that these objections were good and the evidence not properly admissible, nevertheless it will be presumed that such evidence so received was not considered by the court in making his findings and conclusions, unless such inadmissible evidence was so essential that the court's findings could not have been made without it."

It cannot, we think, be said that it affirmatively appears in this case that the evidence objected to influenced the court in reaching its conclusion. The testimony tended to show that the services in question were performed in accordance with an express contract fixing the amount. But that was not an issue in the case. While the petition alleges that the defendant Barker expressly promised to pay, that promise was to pay for the services performed, and there is no allegation that the amount for the services was fixed by any express contract. The petition does not allege that $ 750 was the reasonable value...